At the Volokh Conspiracy, Eugene Volokh has an interesting post about an effort in
As suggested by Professor Volokh, this CRS report, and a separate post by Todd Zwicki, it seems fairly clear that the Constitution, in contrast to the Articles of Confederation, did not authorize state legislatures to recall their state’s representatives, although the state legislatures did issue “instructions” to their Senators. Nothing in the Seventeenth Amendment expressly authorizes such recalls, and it is hard to think of a reason to read the amendment as implicitly authorizing voters to recall their Senators.
Nevertheless, there are a couple of interesting questions presented by this case. First, who should make the decision as to whether the recall is unconstitutional? The Constitution makes each House the judge of the elections, qualifications and returns of its Members. Therefore, it would be up to the Senate, at least in the first instance, to determine the effect of any recall vote by
The counterargument would be that state officials and state courts are bound by oath or affirmation to support the Constitution (under Article VI) and cannot authorize actions that violate it. This is presumably true if holding the recall vote would itself violate the Constitution. But Volokh suggests that an advisory recall vote (i.e., essentially a request by the voters that the Senator resign) would be constitutional. Therefore, New Jersey could, and arguably should, allow the recall vote to go forward on the grounds that, assuming it is constitutionally ineffective as a mandatory recall, it is constitutionally valid as an advisory recall.
I don’t think that the constitutionality of a hypothetical advisory recall is quite the issue, though. The key point is that holding the recall vote, even though it purports to be mandatory, doesn’t actually do anything. It is only if the result of a successful recall vote is presented to the Senate that the constitutional question arises. If the Senate judges that the recalled Senator is still entitled to his seat (as it almost certainly would), it cannot be said that the recall vote has violated the Constitution. Put another way, the Constitution does not prohibit recall votes; it simply doesn’t give them any legal effect.
I am persuaded by this analysis that state officials are not constitutionally obligated to block the recall vote simply because they believe that it will have no constitutional effect. But this doesn’t necessarily mean that they are obligated to let the vote go forward, either. Ultimately, the question of whether the recall vote should go forward would seem to be one of state, not federal, law.